Mandatory Security Checks Warranted Injunctive Relief

The Court of Appeals for the Ninth Circuit reversed and remanded a federal district court's denial of a preliminary injunction because contractor employees challenging government background check requirements raised serious questions regarding the merits of their Administrative Procedure Act and informational privacy claims, and the balance of hardships favored the employees. The government modified the contract to operate the Jet Propulsion Laboratory to require "low-risk" contractor employees to submit to in-depth background investigations. The contractor's employees challenged the background questionnaire and waiver authorizing a government investigation, contending the background investigations violated the APA because they lacked statutory authority, violated the constitutional right to informational privacy, and constituted unreasonable searches prohibited by the Fourth Amendment. The district court held the employees were unlikely to succeed on the merits and denied their request for a preliminary injunction.

However, the government failed to identify statutory or other authority for the background checks. Homeland Security Presidential Directive 12 and the Federal Information Security Management Act did not authorize the broad investigations in dispute. Although the Space Act authorized measures "in the interest of national security," Cole v. Young (351 US 536) suggested a narrow interpretation authorizing an investigation only if the target occupied a "sensitive" position. The employees' constitutional informational privacy claim also had merit. The requested information, such as illegal drug use, was sufficiently private to implicate the right to informational privacy. Considering the open-ended and highly private questions authorized by the waiver, it would be difficult to tailor background investigations narrowly to meet a specific legitimate government interest. However, the district court decided correctly that the government's actions were unlikely to be considered "searches" within the meaning of the Fourth Amendment.

The district court erred in concluding the employees would not suffer irreparable harm because they could be compensated for any temporary denial of employment. Generally, damages are not an adequate remedy for constitutional violations, and back payment of wages cannot compensate for the emotional distress resulting from loss of employment. Moreover, the government did not demonstrate any specific harm would result from a temporary injunction --many employees had worked at the laboratory for decades, the government had taken years to implement the security requirements, and an injunction would not affect the government's ability to investigate personnel in sensitive positions. It was proper for injunctive relief to also apply to the contractor because its threat to terminate noncompliant employees was central to the harm the employees faced, creating a coercive environment in which employees were required to choose between their jobs and constitutional rights. The contractor's termination policy also raised the question whether it was a willful and joint participant in the government's investigation program. (Nelson, et al. v. NASA, et al., CA-9, 52 CCF ¶78,876)

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )